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05 May 14 Tax agent’s period of suspension increased - Cleary

The Tax Practitioners Board gave a tax agent, Mr Cleary, a written caution and suspended his registration for three months. On review of the Board’s decision, and in light of evidence revealed at the hearing, the Administrative Appeals Tribunal has increased the period of suspension to twelve months. The Tribunal even considered the option of termination of registration under s 30-30 of the Tax Agent Services Act 2009 (Cth) (TAS Act) but, in the event, declined to do so, having been advised that the Board did not pursue this option as the case had not proceeded on this basis.

There was no dispute that the tax agent was in breach of the Code of Professional Conduct that applies to tax agents under the TAS Act. He had failed to lodge personal and partnership income tax returns and activity statements on time, had failed to pay his own income tax and his own and the partnership’s client account centre debts on time, and had failed to pay employer contributions to his employee superannuation funds.

The Tribunal found on the evidence that the tax agent’s reasons for his non-compliance were contradictory and far from satisfactory. His ongoing failure to comply with the taxation laws was of considerable concern particularly in light of his knowledge and acceptance of his responsibilities. The tax agent was well aware of his outstanding taxation debt and had made no effort to either repay the debt or enter into a repayment arrangement. His ongoing failure to meet his legal obligations to his staff by failing to pay their superannuation guarantee contributions was of particular concern.

The tax agent’s failure to meet his obligations constituted not only breaches of the law but a failure to uphold the confidence and trust that the public are entitled to expect in the services offered by a registered tax agent.

The Tribunal had no hesitation in imposing a twelve-month period of suspension of registration. The decision under review was varied accordingly.

The Tribunal made the following observation:

“The registration of a person as a tax agent is a holding out by the Tax Practitioner’s Board to the public that the person is a fit and proper person, of good character and qualified to practice as a tax agent. Once registered as a tax agent a person is expected to comply with several requirements and in particular the Code of Professional Conduct as set out in Part 3 of the TAS Act. These provisions in the Act provide a mechanism to ensure ongoing monitoring of a tax agent’s conduct and the means by which the general public can be assured of the honesty, integrity, competence and other responsibilities of the tax agent. The TAS Act includes sanctions for demonstrated non-compliance.”

Re Cleary and Tax Practitioners Board [2014] AATA 260 (AAT, A F Cunningham, Senior Member, 2 May 2014).

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